adoption
Independent Adoption
In an independent adoption, the child is placed with the adopting parents by the birth mother, without an agency serving as intermediary. Independent adoptions are lawful in all but a handful of states, but in some states they are severely restricted. For example, in Michigan a birth mother can place a child for adoption independently (without an agency) only if the adopting parent is a member of the birth mother"s family. If a birth mother in Michigan desires to place a child for adoption outside her family, she must go through an agency.
In Colorado, independent adoptions are not allowed within the state, but if the placement occurs within another state where the placement is lawful, Colorado will, under many circumstances, approve the placement and allow the adoption to proceed. Florida allows a child to be taken into the state for purposes of independent adoption but will not allow a child to be removed from the state for that purpose.
These laws are being revised constantly by the various states, so it is critical that a person considering an independent adoption retain an experienced adoption attorney. If an interstate adoption is planned, experienced attorneys must be hired in both states.
In more than 40 states, independent adoptions are allowed by law and are met with varying degrees of acceptance. For example, in California, more than 80 percent of all adoptions of newborns are independent adoptions. Thus, in California, and in a number of other states, independent adoptions are the norm, and agency adoptions are the exception.
How it works
In an independent adoption, the birth mother usually selects the adopting parents herself. For her selection of the adopting parents to be meaningful, she must know a good deal about the couple. At a very minimum, she should know what the couple looks like, what their educational backgrounds are, what they do for a living, how long they have been married, how many times they have been married, what kind of income they have, their approximate net worth, whether they own their home, what religion they are and how religious they are, and what hobbies and interests they enjoy.
Apart from this basic information, the birth mother should be provided with as much information as she deems necessary. In most cases, the birth mother will want to meet with the prospective adopting parents to satisfy herself that the couple is sufficiently well qualified to adopt her child.
Arguably, only one or two states require a face-to-face meeting between the adopting parents and the birth mother, and these states apparently also require that the parties exchange last names. In most states, however, this is not required, and it is not unusual for a birth mother to express the preference that she meet the couple, but not be advised of their last name. The birth mother plays the active role in an independent adoption, and she should be allowed to define the terms of the adoption in such a way as to best suit her needs. If she wishes to meet the adopting parents, as most will, she should meet them. If she chooses not to meet them, no one should try to force her unless it is the opinion of legal counsel that it is required under the laws of that state. Likewise, she should determine the amount of contact she is to have with them, both before and after the placement of the child.
The adopting parents also have some options in an independent adoption, but they are more limited. As the recipient of the child, the adopting parents play the passive role:
Their response to the desires of the birth mother can take only two or three forms.
- The adopting parents can respond affirmatively to the request of the birth mother, indicating that they can live with that request.
- Alternatively, they can respond negatively, indicating that they cannot live with that request, and therefore choose to opt out of that adoption.
- Third, they can negotiate — seek compromises that meet the needs of the birth mother without causing undue anxiety or stress fro the adopting parents.
There is nothing unseemly or inappropriate about such negotiations. In fact, they are a positive thing, because they allow the parties to jointly structure an adoption that best suits their needs and desires.
Typically, the parties find it helpful to have some objective person to assist in these negotiations, such as a counselor or attorney. However, care should be exercised, because some states forbid "intermediary activity," which is usually defined as a third party assisting the parties to the adoption by acting as a buffer between them. Other states allow the assistance of an intermediary, provided that the actual selection of the adopting parents is done by the birth mother and not by the intermediary or any other person. Utah, for instance, allows limited assistance of an intermediary, provided that person is not paid for this service.
Once an agreement is made as to the terms of the adoption, the agreement should be confirmed in writing — not as a legally enforceable contract, but rather as a memorandum of understanding between the parties to prevent future misunderstanding or confusion.
People often assume there is a massive contract between the parties to an independent adoption, and are disappointed to find otherwise. A baby is not a commodity that can be bought, sold or contracted for. Even if one were to take the trouble to draft such a contract, it is highly unlikely that such an agreement would be enforceable by the courts in the event that it was breached by either party. This is one reason why people typically choose to meet in independent adoptions, because they are placing significant reliance and trust on each other, and a face-to-face meeting serves to facilitate trust, respect and mutual understanding.
Why many moms prefer independence
There are some very good reasons why birth mothers tend to prefer independent adoptions over agency adoptions (in those states where the birth mother has a choice). First, most birth mothers are attracted by the fact that an independent adoption allows them the freedom and flexibility to define the terms of the adoption in such a way as to best meet the birth mother"s needs. Second, it is legal in most states where independent adoptions are allowed for the adopting parents to pay the medical expenses of the birth mother related to the birth child (to the extent that these expenses are not covered by private health insurance or through some form of welfare or public assistance). For some birth mothers, this can be a very important consideration.
A matter of money
In many parts of the country, a normal delivery without complications can cost $6,000 to $7,000, or even up to $12,000 should the delivery be by cesarean section. State laws regarding adoptions typically provide that adopting parents may pay these medical expenses only if the expenditure is reasonable and necessary, is related to the pregnancy and delivery of the child, and is paid by the adopting parents unconditionally and as an act of charity. State laws typically forbid the adopting parents to attach any strings to their payment of the medical bills, particularly any condition of payment that the birth mother place her child for adoption with them.
A number of states allowing independent adoptions also provide by statute that it is a misdemeanor for a birth mother to accept this charity from the prospective adopting parents unless she has an actual intention to place her child with the donor couple. This does not mean that a birth mother is legally obligated to proceed with an adoption if she accepts assistance with the medical bills from the prospective adopting parents. Rather, these statutes are intended to prevent a woman who has no intention of placing her child for adoption from accepting financial assistance from hopeful adopting parents. Accordingly, a birth mother who legitimately intends to place her child for adoption, and accepts financial assistance from the adopting parents for that purpose, may still legally change her mind afterward.
States differ greatly as to the propriety of payment of living (i.e. non-medical) expenses of the birth mother by the adopting parents. A number of states, such as Ohio, prohibit the adopting parents from paying any expenses of the birth mother other than medical expenses and counseling expenses related to the pregnancy. Most of the other states allowing independent adoptions, however, provide that it is not illegal for adopting parents to pay other expenses of the birth mother, provided that the expenses are reasonable and necessary, are related to the pregnancy, are paid by the adopting parents unconditionally as an act of charity, and are not conditioned nor contingent upon the successful completion of the adoption.
In these states, including California, great care must be exercised in determining which expenditures may be legally allowable. For example, adopting parents may rent a car for use by the birth mother during the pregnancy so that she will have transportation to medical appointments and to the hospital when she goes into labor. The adopting parents, however, may not purchase a car and give it to the mother, even if it is an inexpensive transportation car and winds up costing less than a rental car. The propriety of financial assistance in this context often turns on subtle interpretation of intent.
The purpose of these often confusing statutes dealing with financial assistance is that all states desire to prevent the purchase or sale of children. In all 50 states, buying or selling a child is a felony, and these often confusing rules exist to differentiate between legitimate financial assistance provided to the birth mother by the adopting parents and the purchase or sale of a child.
Most states require that the adopting parents file with the court an accounting report listing every expenditure that has been made, or agreed to be made, by the adopting parents in connection with the adoption. These accounting reports must be signed under oath by the adopting parents. The courts typically look these accounting reports over very carefully to make sure that financial arrangements were made in compliance with the laws of that state. The court will not grant the adoption petition unless the court is satisfied that there was no financial impropriety in connection with the adoption.
The role of an attorney
Generally, in independent adoptions in states where financial assistance by the adopting parents is permitted, it is considered desirable for the adopting parents to deposit funds into an attorney"s trust account, from which the attorney disburses funds in payment of medical bills or such other expenses as the adopting parents may specify, and as the laws of the state may allow. The courts tend to prefer that funds be administered through an attorney"s trust account because attorneys are considered officers of the court, and judges tend to feel more comfortable with adoptions where an officer of the court oversees the disbursement of funds to ensure compliance with state law.
In most states that allow independent adoptions, an attorney in an independent adoption may represent only the adopting parents or the birth mother, but not both. This rule has its origin in an assumption that an independent adoption is an adversary proceeding, in which there are two hostile and competing sides: adopting parents vs. birth mother. Typically, each "side" retains separate legal counsel, with the adopting parents bearing responsibility for both legal bills.
This issue of "sides" brings us to an interesting question: Is an independent adoption really an adversary proceeding? In reality, the parties are usually united by a common goal and purpose — the best interests of the child. As long as the birth mother and the adopting parents are in agreement as to what is in the child"s best interest, it may properly be said that there is no conflict of interest for an attorney.
In recognition of this fact, the State of California has provided by statute that it is not unethical for an attorney to represent both the birth parents and the adopting parents in an independent adoption, provided that all parties agree in writing to waive whatever technical conflict of interest might exist should the attorney undertake this dual representation. Furthermore, both the laws and the ethical rules in California require the attorney to resign from the case if an actual conflict were to arise.
The home study
In the more than 40 states that allow independent adoptions, the state exercises supervisory control over the process of the adoption. In most states, some form of home study must occur prior to the placement of the child in the home. This can take many forms, such as in a handful of states that require the adopting parents to obtain a foster care license prior to the placement of the child. In California and a number of other states (including Oregon, New Jersey, Mississippi and Maryland), the home study does not commence until after the child is in the home and the adopting parents have filed with the court their adoption petition. The court then appoints the state department of social service, or some equivalent agency, to conduct a home study and advise the court as to whether the petition should be granted or denied.
The procedures and requirements of this home study vary from state to state, and even from country to country. Typically, the home study in an independent adoption is remarkably similar to that which occurs in an agency adoption. Each state provides by statute some period of time within which the home study is to be completed, usually about six months. The courts may allow extra time for the completion of the home study if some good reason exists why the responsible agency is unable to complete it within the time normally allowed by law.
A welcome development
Viewed in this light, it can be seen that independent adoptions represent the most important development in the field of adoptions in the last 50 years. Most people who experience an independent adoption find it to be a loving and warm experience. Adoption is always a painful experience for a birth mother, but an independent adoption allows her to structure the adoption in such a way that her needs are met.
It is common for a birth mother to indicate that had she not met the adopting parents and liked them very much, and had she not been able to structure the adoption to suit her own needs, she would not have placed her child up for adoption. It is no coincidence that those states which do not allow independent adoptions also have the lowest rates of adoptions per capita in the United States. Statistics show that many women who would have placed their children independently if that were an option, choose to keep them rather than go through an adoption agency.
It is true that independent adoptions are still considered controversial. This view is most common among those who feel that selecting adopting parents should be left to social workers and others professionally trained in that field. Proponents of independent adoptions might respond that the birth mother herself is in a better position to determine what her needs are. At least one popular writer in the adoption field has expressed the opinion that it is unnecessarily paternalistic, and even demeaning, to suggest that a birth mother is unable to select the adopting parents herself, and that she requires the services of a social worker in placing her child.
Most of the controversy surrounding the issue of independent adoption arises out of perceived abuses in the independent adoption process. For example, it is a commonly held view that there exists a "gray market" for newborn babies in the United States through which babies are made available to the extremely rich or highest bidder. Fortunately, this gray market myth has little or no basis in reality. In almost every one of the more than 40 states that permit independent adoptions, the state closely regulates the adoption process, and the state and the courts will not allow an adoption to occur if there has been any impropriety or violation of the laws of that state. As a result of this state supervision, the kinds of abuses commonly assumed to occur in independent adoptions, in fact, do not exist.
In summary, an independent adoption represents an attractive alternative for the birth mother considering placing her child for adoption. It also represents a viable option for adopting parents who would prefer not to wait several years for an adoption through an agency, or who would not qualify for an agency adoption because their ages exceed the maximum age limit that agencies typically impose.
Independent adoptions, however, are not for everyone. If a birth mother or prospective adopting parents are troubled by the possibility of meeting the other parties to the adoption, or if a birth mother does not wish to bear responsibility for decision-making, an agency adoption might be preferable.
Background Information
Agency Adoptions
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Adopting on Your Own
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Causes and Characteristics of Attachment Disorder
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Not Just a Mother's Decision
Birth fathers have a right to be included in the adoption process.
Questions and Answers
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Review Frequently Asked Questions
Stories
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Adoption as Grace
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An Act of Grace
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Climbing the Hills
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If you've been through a experience related to this topic, we invite you to share your story with others.Share Your Story
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